A state can preserve its limited supply of big game by making nonresidents pay more than residents for hunting licenses, the Supreme Court ruled, 6 to 3, yesterday.
At least 35 states charge out-of-state hunters substantially more than their citizens to hunt game, including deer and black and brown bear.
One of the states is Montana with one of the largest elk populations in the nation. Sport hunters, who pursue elk mainly for their trophy value - the distinctive antlers - come to Montana from every other state and numerous foreign countries. Montana residents hunt elk mainly for meat.
For the 1976 season, a Montana resident could buy a license solely for elk for $9. A nonresident wanting to hunt only elk had to buy a combination license - for one elk, one deer, one black bear, game birds and hook-and-line fishing - for $225, or 25 times as much. A combination license cost a resident $30.
This discrepancy led to a lawsuit in which a resident outfitter and hunting guide and four Minnesota hunters contended that the Constitution was being violated.
Specifically, the suit claimed, the discrepancy violated the provison saying, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."
A divided panel of three federal judges rejected the claim, concluding, "If the elk is to survive as a species, the game herds must be managed, and a vital part of the management is the limitation of the annual kill."
The panel also concluded that where a state creates or supports the opportunity to enjoy a recreational activity, where there is no connection between the activity and "any fundamental right," and where the activity can be enjoyed by only a portion of those who would enjoy it, "a state may prefer its residents over the residents of other states. . . ."
Supreme Court Justice Harry A. Blackmun, in the opinion for the court affirming the panel, wrote, "Whatever right or activities may be 'fundamental' under the Privileges and Immunities Clause, . . . elk hunting by nonresidents is not one of them."
He pointed out that the state spends substantial sums to manage the elk population and make the game accessible to hunters, and that nonresident hunters in the 1960s increased in number eight times as fast as resident hunters.
"All this adds up to no irrationality in the differences the Montana Legislature has drawn in the costs of its licenses to hunt elk." Blackmun said.
In the dissenting opinion, Justice William J. Brennan Jr., joined by Justices Byron R. White and Thurgood Marshall, said the issue is not whether a right is "fundamental," but whether the Privileges and Immunities Clause should prevent Montana "from irrationally, wantonly, and even invidiously discriminating against nonresidents seeking to enjoy natural treasures she alone among the states possesse."
Under "a proper" analysis, "Montana's discriminatory treatment of nonresident big-game hunters in this case must fall," Brennan wrote.